Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal File Number: 12608/MVIA

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Jennifer Nieuwenhuis

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice Chair

Appearances:

For the Appellant: Jennifer Nieuwenhuis, Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: March 6, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on March 6, 2020 to consider the appellant’s appeal of the impoundment of her 2014 Hyundai (the “vehicle”) on January 27, 2020 for 45 days. The vehicle was impounded because the appellant was driving the vehicle in Ontario even though her driver’s licence in Ontario was under suspension at the time of impoundment.

2The appellant submits that the impoundment will result in exceptional hardship because she needs the vehicle for transportation for herself and her children, and the payment of the impound fees to obtain the vehicle at the end of the impoundment period and legal fees related to the impoundment will cause her financial hardship.

B. ISSUE:

3The issue to be determined is whether the impoundment will result in exceptional hardship.

C. CONCLUSION:

4I find that the appellant’s evidence fails to support a finding that the impoundment will result in exceptional hardship.

D. LAW AND ANALYSIS:

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Will the impoundment result in exceptional hardship?

7I find that the impoundment will not result in exceptional hardship because the appellant had alternatives available to the impounded vehicle.

8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

9If the appellant establishes that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

11Section 10(3)(d) of the Regulation provides that the Tribunal may only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the impact of the loss will be on a person other than a person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle.

12Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

13The appellant testified that she was driving the vehicle in Ontario at the time it was impounded. The vehicle was impounded because her driver’s licence in Ontario was suspended at the time of impoundment and had been for many years. The appellant is employed as a registered practical nurse and needs her vehicle to get to work in Ontario. The appellant testified that since the vehicle was impounded she has been able to get to work by car pooling with her husband. She missed only one day of work because of the impoundment which was the day the vehicle was impounded. The appellant’s employment has not been affected.

14The appellant testified that she needs the vehicle to take her two and four year old children to daycare and to medical appointments. However, she also testified that her husband has been able to take the children to daycare since the vehicle was impounded. Since the impoundment, the appellant testified that there have been no medical emergencies requiring her to take the children to the doctor and if anything arises during the six days left in the impoundment period, her husband may be able to take them in his vehicle and also there are 911 emergency services where she lives.

15The appellant testified that she needs the vehicle to go to her medical appointments as she is now 31 weeks pregnant. Since the impoundment she has been unable to see her family physician which she testified has put her and her unborn child at risk. The applicant also said that she is not considered a high-risk pregnancy, her husband has a vehicle and could be available to take her to medical care should there be a medical emergency and there are 911 emergency services where she lives. She also said that she will be seeing a gynecologist at the hospital where she will give birth starting next week and will not be seeing her family physician about the pregnancy any longer. She said that there has been no medical emergency related to the pregnancy since the impoundment.

16The appellant admitted in her testimony that her work, her husband’s work schedule and caring for the children have been worked out because her husband has been able to drive her and the children and by the use of taxis. She said mostly the exceptional hardship now is the impound fees she will have to pay to retrieve the vehicle and legal fees for a paralegal hired to help her. She will need to put these charges on her credit card which will cause her financial and emotional stress.

17Although the appellant’s evidence is that the impoundment period will be inconvenient for her, inconvenience is not a factor which the Tribunal can take into consideration as a matter of law. Also, as a matter of fact, there is no inconvenience to the appellant in Ontario because in this particular case, she was not allowed to drive the vehicle in Ontario at the time of impoundment due to the suspension of her Ontario driver’s licence.

18I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

19I find that the appellant has alternatives to the impounded vehicle available to her during the impoundment period including rides provided by her husband and taxis.

20Further, because at the time of impoundment the appellant was driving the vehicle in Ontario even though her Ontario driver’s licence was suspended, s. 10(3)(d) of the Regulation provides that I may not consider financial, employment and education or training losses listed in s. 10(2) of the Regulation to the appellant because it was her lack of a valid Ontario driving licence that resulted in the impoundment of the vehicle.

21For these reasons, I find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER:

22Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.

LICENCE APPEAL TRIBUNAL

Avril A. Farlam, Vice Chair